DECLARATION OF GRAHAM E. BERRY
I, GRAHAM E. BERRY, declare and state:
I am over the age of 18 years. I am the defendant in the within adversary
proceeding. I have personal knowledge of the matters set forth in this
declaration and, if called upon as a witness, would testify thereto.
1. This Declaration is submitted in support of my motion for leave to
withdraw as one of defendant’s counsel herein on the grounds that: (a) I
will
be absent from the country at the time of the currently scheduled trial date
of January 22, 2001, because of an earlier scheduled and paid for,
non-refundable, non-changeable trip to my parents’ home in New Zealand;
(b)
my continuing partial and temporary disability resulting from Church of
Scientology conduct directed at me; (c) my original representations (because
of this disability), that I would not be appearing as trial counsel herein.
Attached hereto and marked, as Exhibit A is a copy of medical certificate of
Duane E.McWaine dated November 19, 1999. An updated certificate will be filed
as soon as possible.
2. Over the past ten years I have been engaged in extensive litigation
involving the Church of Scientology. However, the Church’s Fair Game
Policies
and Practises, intended to "destroy" those such as Henson and me who are
perceived of as impeding the Church’s plans to take over the world and
its
plans to exterminate at least 2.5% of the population as well as all others
who oppose its plans, has extracted such a toll upon me that I am now
partially and temporarily disabled. I am not able to engage in legal
practise, most particularly I am not able to engage in the stresses of
litigation and trial practice.
3. I have represented Keith Henson in a number of the eight cases that have
been filed against him at the instigation of the Church of Scientology and
its representatives. When he learned, the night before his arraignment
herein, through a motion filed by Church of Scientology lawyers in an
unrelated case, that he was to be arraigned the next morning herein, he
begged for my advice and assistance. Although the Court files herein stated
he had been sent a summons to appear, none had been received. The next morn
ing when, to the Church of Scientology’s evident disappointment, Mr.
Henson appeared for arraignment and on my advice asked for a delay. He was
given an unfolded original of the defendant’s copy of the
summons/notice,
which the court file noted had already been mailed to him. Had Mr. Henson not
accidentally learned of his arraignment the next day, he could have, and
likely would have been arrested on a non-appearance warrant while being
deposed by Scientology counsel in Los Angeles. This counsel had known since
September 13, 2000, of the conflicting arraignment and deposition schedules.
4. Ten days later, after Mr. Henson and I appeared at the postponed
arraignment, we went to seek appropriate local counsel as Mr. Henson was well
aware that it was my intention to assist him (and his attorney after one had
been retained) by acting solely as a consultant with regard to the
Scientology enterprise.
5. By the intended start of trial on October 30, 2000,. James Harr, Esq., was
representing Mr. Henson in the matter herein.
6. When Mr. Henson requested my assistance because of the surprising news of
his arraignment, I reminded him of the fact that I while I remained an active
member of the
California bar I was not engaged in active practice because of my temporary
and partial health disability as explained in the attached letter by Dr.
McWaine. As this letter indicates, this disability was primarily caused by
the Church of Scientology and its Fair Game Policies and Practices as
directed against me.
7. In 1991-1992, I was part of the successful defense team in the
Church of
Scientology v. Yanny I and II cases. I also appeared in the Church of
Scientology v. Armstrong II case. In 1993-1994, I successfully led the
defense team in Church of Scientology International v. Fishman
& Geertz, CD DC CA Case No.91-6426-HLH. We (me and my defense team of six
lawyers)
developed evidence regarding the Church of Scientology’s involvement in
murders, suicides and financial frauds (even against the United States
Government). After engaging in blackmail to have me removed from the case,
Church of Scientology "Chief Investigator" Eugene Ingram, Scientology
attorneys Helena Kobrin and Elliot Abelson, and Church of Scientology Office
of Special Affairs ("OSA") managed to secure custodial access to my
clients’
files even though Dr.Geertz was still engaged, and would continue to be
engaged, in malicious
prosecution proceedings against the Church. Similarly, with Fishman and
Geertz now unrepresented in 1994, Moxon convinced Federal Judge Hupp to
temporarily seal the District Court file. Subsequently, I have been involved
in a number of other Church of Scientology related cases including at least
four cases involving Mr.Henson.He was successful in three of those.
8. Since 1993, Moxon & Kobrin, Abelson and Ingram have repeatedly contacted
(under the guise of "investigating" me) almost all of my professional
colleagues, clients, partners, opposing
counsels, friends, acquaintances, etc., around this city and indeed around
the world. In particular, they have distributed, and continue to publish, a
now recanted May 5,1994, Church/Moxon/Ingram blackmailed and bribed
declaration of Robert Cipriano perjuriously and baselessly accusing me of
pedophilia. Their Internet postings remain on the World Wide Web even though
recanted by Cipriano. Practically speaking, this has rendered it impossible
for me to practice law either with a firm or alone. As intended by Moxon &
Kobrin, it has shrunk my circle of friends, associates, clients and
activities. I am now nearly a virtual recluse after feeling
mugged, raped and plundered by Moxon & Kobrin, Abelson, Rosen, Ingram and
Scientology’s improper and unethical manipulation of the legal system
and
"Fair Gaming" of me.
Cipriano’s deposition has recently been taken in the State Court Hurtado
v.
Berry case. Moxon tried to prevent the deposition being taken, terminated it,
brought an unsuccessful ex parte motion to quash it and then wanted to have
the transcript sealed. In the deposition Cipriano repeatedly testified to
Moxon that Moxon had blackmailed and bribed him, suborned perjury from him,
solicited his representation, engaged in witness tampering, tortous conduct,
serious ethical breaches and in the criminal obstruction of justice during the
Berry v. Cipriano consolidated cases. Moxon did not rebut or deny any of
these allegations before the District Court in the Pattinson v. Miscavige
case. Instead, his only and successful argument was that they are legally
irrelevant! At the time of this testimony, then District Attorney Gil
Garcetti refused to pursue this criminal conduct of Moxon’s,
corroborated by
fifty irrefutable and uncontroverted documents (many in Moxon’s own
handwriting) for as one of his chief aides said, "Graham, we cannot do it for
political reasons. One day I may be able to explain it to you." Naturally,
that
"political reason" was probably related to Moxon and the Church of
Scientology’s criminal defense counsel, Gerald Chaleff, Esq., who is
also
Chairman of the Los Angeles Police Commission.
9. Then, on September 13, 2000, Abelson embarked upon another character
assasination campaign, which he described as an "investigation". He wrote,
"The purpose of my investigation is to uncover unethical or illegal conduct
committed by Mr. Berry." Other lawyers have described it as " the most
despicable conduct" by an attorney that they have ever seen. It was provided
to my parents, my neighbours, longtime friends and others listed as ccs on
the document. Some had never heard of me before, but were neighbours of my
friend, Jane
Scott, an ex-scientologist whose former husband has contributed over one
million dollars to
Scientology. The letter had the effect of plunging me into deeper depression
from which I am only now, after a substantial increase in the dosage of
medication I am taking, beginning to emerge.
10. In October, I went to Germany to assist the Lisa McPherson Trust as one
of their counsel. The German Secret Police provided our group with security
officers to protect us from the Church of Scientology’s potential
activities
against us and from OSA’s constant surveillance. Many European nations
deem
the Church to be a subversive, terrorist, criminal, political and commercial
organization which has to be monitored and restricted. Indeed, I remain under
regular surveillance by the Church’s OSA organization.
11. During this trip to Germany, I learned facts, which lead me to conclude
that Scientology has essentially been creating false claims of persecution in
Germany and other European
countries in order to persuade the United States’State Department to
advance
the Church of Scientology’s "religious" agenda upon the contrived claim
of
religious persecution. One of my German hosts, Ursula Caberta, is the head of
the State of Hamburg’s Working Group on Scientology which in Europe is
widely
considered to be a for profit commercial and terrorist organization with
global totalitarian political objectives. Moxon & Kobrin sued Ms. Caberta in
the Florida Courts when she recently visited the Lisa McPherson Trust in
Clearwater, Florida. [See generally: www.lisatrust.net;
www.lisamcpherson.org; www.xenu.net; www.xenutv.com; www.lermanet.com.] Even
though barred by principles of sovereign immunity Moxon & Kobrin
continue to harass Caberta (a former legislator) with this abusive litigation
against a foreign government official with falsely and widely published
corruption allegations. Indeed, OSA
stages daily, ugly demonstrations outside the offices of her superiors for
the purpose of intimidating them into dismissing her. Similarly, they picket
Mr.Henson’s home and the f his and his wife’s employers.
12. During this same period of time, the in-house scientology legal unit, the
Moxon & Kobrin law offices, also surreptitiously arranged for documents to be
placed in the INS file of my former client, Michael Pattinson, in an
ultimately unsuccessful attempt to prevent him from receiving his INS "green
card". Mr.Pattinson successfully sued the INS in connection with Moxon &
Kobrin’s apparent conduct. The INS could not explain how the Moxon &
Kobrin
documents found themselves in the Pattinson "green card" file and it was
ordered to immediately issue Mr.Pattinson’s "green card."
13. Similarly, during this same 1998 to the present date, Moxon & Kobrin and
Samuel
D. Rosen, Esq., from New York continued to harass Keith Henson, his wife and
18-year-old daughter in Northern District Bankruptcy Court. As a rough
estimate, the Church of Scientology has spent over one million dollars in
connection with its claim for $75,000 (Henson I, breach of copyright
statutory damages) against Mr. Henson who is in bankruptcy because of the
Church of Scientology. Clearly, the bankruptcy process is being abused in Mr.
Henson’s case. The amount of money being spent to harass the Henson
family,
their friends and Henson’s prospective employers far outweighs any
possible
recovery by the Church of Scientology. Of significance to
the charges filed herein, Moxon & Kobrin and Rosen took a 4th day of
Henson’s
deposition on
October 24, 2000. Henson objected to certain of Rosen’s questions as
being
collateral discovery
for the case of The People v. Henson. Rosen denied this, insisted the
questions be answered on
pain of sanctions, and represented that the questions and documents were not
collateral discovery. A mere two days later Rosen personally had delivered an
expedited copy of that Henson deposition transcript to the Hemet District
Attorney for use in this same People v. Henson case which was then scheduled
for trial the next court day. Indeed, earlier the same morning, New York
attorney Rosen (charging $500 per hour) sat in the Hemet Municipal Courtroom
during the pre-trial status conference in The People v. Henson and
communicated with the Deputy District Attorney as to strategy. The same DDA
has conceded to me that Scientology representatives have been actively
assisting the Riverside District attorney’s prosecution of Mr.Henson. At
the
October 26, 2000, status conference Rosen said to me, as I spoke to the DDA,
" Mr. Berry, are you still being a vexatious litigant? Robert, (indicating
DDA Robert Schwartz) don’t pay attention to him. We’re having him
disbarred!"
14. The People v. Henson record in Hemet is also clear as to improper
pressure being brought upon the District Attorney to prosecute Henson despite
the Hemet police fully investigating and reporting, in three different police
reports, that Henson had committed no crime. This pressure was bought by
Gerald Feffer, Esq., of the Washington, D.C. criminal defense law firm of
Williams & Connolly. Mr.Feffer is one of Scientology’s lead attorneys
and was
instrumental in having the IRS suddenly and surprisingly drop its 20 year
refusal to grant Scientology tax exempt status in exchange for Scientology
dismissing the over 2000 law suits it had caused to be filed against the IRS.
According to an address by David Miscavige, Scientology’s leader, the
IRS
relieved the Church of Scientology from a past due tax bill of over one
billion dollars, David
Miscavige and other scientology leaders from personal tax bills in the
hundreds of thousands of dollars, appointed a committee of scientology
officials to determine the future tax compliance of the Church and individual
scientologists and provided for the United States government to brief all
foreign governments as to the Church of Scientology’s new tax free
status in
the U.S. and Scientology’s alleged entitlement to tax free income in
those
nations. At the same time, the Church of Scientology reached a settlement
with Interpol with which it had been warring for many years.
15. Mr. Henson has publicly stated that his research has disclosed that
Moxon, on behalf of the Church of Scientology, was instrumental in paying a
Maryland private investigator over one million dollars in fees and "costs" to
set up the then new IRS Commissioner in a compromising situation(s) so that
he would finally approve the Church of Scientology’s IRS Section 501(c)
(3)
applications despite over 20 years of IRS and FBI opposition to their being
granted 501(c) (3)
status. The same opposition to Scientology’s 501 (c) (3) status which
had
been upheld the previous year by the US Supreme Court in the Hernandez v.
Commissioner case.
16. My 75-year-old parents visited me briefly last October. They were shocked
by Scientology’s/Abelson’s packet, described above, and offered
to pay for
me to visit them in New Zealand for six weeks from December 18, 2000, until
January 31, 2001.I accepted and they purchased me a non-refundable,
non-changeable air fare. That was purchased on October 20, 2000, before the
Courts currently scheduled trial date of January 22, 2001.
17. The People v. Henson case is a misdemeanor terrorism case in which the
victims concurrently claim they are at cause over matter, energy, space and
time, but are in a sustained
state of terror caused by Henson’s web postings, taken out of context,
and his picketing of
their paramilitary base! Arguing by analogy to assault cases and the "egg
shell skull doctrine" that you take your victim as you find him, they now
advance the "numbskull doctrine", that brainwashed cult members, who are not
allowed access to the Internet and are actively prevented (by the Church of
Scientology "net nanny") from reading the newsgroups on which Henson posts,
may have an unreasonable and irrational fear based on unreasonable and out of
context statements of which they were informed selectively, but which they
did not read. It is the 8th case that Scientology has either filed or
instigated against critic, Keith Henson, on whom they have expended at least
$2,000,000 in legal fees to try to gag him and stop him from picketing
Scientology facilities. Samuel D.Rosen, Esq., has been the recipient of the
bulk of these fees. Indeed, Mr. Rosen has vowed to pursue Mr. Henson for the
rest of his days. The two previous People v. Henson cases (for picketing
related conduct), and Hoden v. Henson (an almost identical suit to that herein) were dismissed.
18. My withdrawal from my limited role (as a consultant on Scientology
litigation issues) in The People v Henson case will now leave Mr. Henson with
Mr.Harr as counsel, in accordance with the plan at the beginning of these
proceedings. Moxon & Kobrin and Rosen’s harassment of Henson, his
neighbours and employers has rendered it almost impossible for Mr.Henson to
obtain or retain employment and so adequately and promptly pay Mr.Harr.
However, this is what the Church of Scientology’s Fair Game Policies and
Practices, as applied by Ingram, Moxon & Kobrin, Abelson, Rosen and others is
all about. Indeed, Scientology brought New
York attorney Samuel D. Rosen, on October 26, 2000, to observe a status
conference I attended
in this latest People v. Henson case. In this regard, it is significant to
note from a cost standpoint, that Mr. Rosen (a copyright lawyer) charges
approximately $500.00 per hour (and as he has testified in court, "No
discounts to anyone!") and requires two first class plane seats and luxury
hotel accommodations when he travels, even for the 501(c)(3) Scientology
organization. In another case he claimed that he "did business in California"
and therefore knew that the California courts would impose the sanctions he
would seek if his deposition questions were not answered. In one of the eight
Henson cases, Mr. Rosen said to me, in open court that he would "Smash your
[my] face in!" This was the subject of a side bar conference on the record
and several subsequent declarations including those of two witnesses.
19. I am also required to face the Church of Scientology as a defendant in a
case they solicited. This occurs one month after I return from New
Zealand.The California Superior Court trial in Hurtado v. Berry is scheduled
to commence on March 5, 2001.Moxon & Kobrin are trial
counsel in that case. Insurance carrier appointed counsel therein is
representing me. During the Berry v. Cipriano/Berry v. Barton/Berry v.
Miscavige [and Moxon] litigation that Rosen and Moxon: (1) obtained an order
that they be provided with the details of my malpractice insurance coverage;
and (2) insisted that I respond to questions about a pre-existing sexual
relationship (which is expressly permissible) with a subsequent pro bono
client, Michael Hurtado. Deposition evidence in the Hurtado v. Berry
(including that of Hurtado and his mother) now establishes that: (1)
Moxon’s investigator, Ingram, visited Hurtado’s parents and
showed them the
now recanted first Cipriano declaration and my deposition testimony in the
Berry cases, upon which they
expressly relied; (2) arranged for Hurtado’s parents to meet with
attorneys
Moxon and Donald
Wager who solicited the representation of their then 24 year old son in
action against me for
alleged sexual battery and legal malpractice; (3) that Ingram, Moxon and
Wager then met with Hurtado, told him that he could make a lot of money by
suing me, that I was a "very bad person" who they had, " . . . been after
for a long time" and that they would represent him for free; that (4) Wager
and Hurtado made certain perjurious statements to the Santa Monica Superior
Court in order to have Hurtado’s drug diversion plea set aside for
alleged
attorney misconduct and forwarded that false testimony and argument to the
California State Bar; that (5) Ingram, Wager, and Scientology attorney Elliot
Abelson then unsuccessfully sought to have the LA District Attorney’s
office
file criminal charges against me; and (6) unsuccessfully demanded a $750,000
settlement, then a $100,000 settlement, more recently a $15,000 settlement
and now a voluntary dismissal in exchange for general releases of Hurtado,
et. al., from my insurance carrier; and (7) after Hurtado was rearrested (on
charges relating to conduct that was essentially burglary and
lying in wait [in a bedroom closet] for a woman with a carving knife) trying
through Ingram to pressure the State’s complainant to drop the charges.
Hurtado then served a year in prison and is now on 10 years probation.
Discovery is drawing to a close in that case. A settlement conference is
scheduled for February 2, 2001.However, I cannot consent to settle the case,
under any circumstances or arrangement because of the Moxon & Kobrin/Ingram
continuing world wide dissemination of these perjurious allegations on the
Internet. Accordingly, even a substantial monetary offer to release malicious
prosecution and abuse of process claims against all those
involved could not be accepted under any circumstances. I believe that a
successful trial is
required to clear my name. Of course, the circumstances are also such that
some of these involved may be indicted, and Hurtado could have his ten years
of probation cancelled irrespective of the outcome of any subsequent perjury
proceeding against Hurtado.
20. I am currently under the care of Dr. McWaine because of the temporarily
disabling depression from which I am now and have been suffering, primarily
caused by the long standing course of conduct against me by Moxon, Kobrin,
Paquette, Rosen, Ingram and others. I am taking anti-depressant medications
prescribed by Dr. McWaine. I have recently increased the dosage of one of my
medications from 50 mg to 200 mg (which was to have been the appropriate
dosage all along). Increasing this medication has rendered me a bit less
lethargic and susceptible to procrastination and overwhelm and I seem to have
less frequent suicidal ideations. Nevertheless, even with these minor
improvements, I am physically, mentally and emotionally unable to continue at
this time with any trial representation, brief writing or other related
activities. Accordingly, I must seek to withdraw from the only case (other
than my own) in which I am currently involved.
21. Dr. McWaine is expected to prepare a letter confirming and updating his
report of a year ago. (See Exhibit A hereto). This updated report will be
filed as soon as it is available.
22. I have not included testimony regarding similar Moxon &
Kobrin/Abelson/Rosen in other cases in which I do not have personal
involvement or an attorney client relationship. These cases would include
both the Mark Bunker case and Jesse Prince arrest where scientology has also
been instrumental in instigating improper and baseless prosecutorial
activity. Abelson, a former Mafia and Gambino "Family" criminal defense
attorney is closely involved in the Bunker
prosecution. In both the Bunker and Prince matters there are allegations of
Church of Scientology-related evidence planting and/or tampering.
23. Until subjected to abusive scientology litigation tactics and
"overwhelm", I had never been sanctioned by any court anywhere. I believed
that law enforcement was essentially honest and that the courts were
generally incorruptible despite what a 1980 American Lawyer article described
as the Church of "Scientology’s War Against The Judges". I stood up to
scientology because I believed such abusive conduct would not be tolerated by
our courts. I believed that our courts would not be subverted with such
apparent legal impunity. After all, say most law enforcement and other public
officials, "Scientology is a church and a religion!" To learn otherwise has
been a major factor in the often-immobilizing depression for which I have
been under medical attention for since June 1998. It is extremely painful to
have to constantly fight abuse of the legal system by the Church of
Scientology and its activities to "utterly destroy" its critics in accordance
with the written procedures set forth in its Fair Game Policies and Practices.
24. When I appeared at the arraignment of Mr. Henson on October 30, 2000, I
made it clear to him and to the court that I was only appearing for the
purpose of the arraignment and that I would not be trial counsel, in part
because local counsel was required, in part because of my current disability,
and in part also because I may be required as a witness (although there are
now other witnesses available to testify as to the same facts, thus making my
evidence redundant.)
25. Like Mr. Henson, I have also picketed alone and with others on a number
of occasions over several years and on each of these occasions those present
at the base, or Golden Era Productions as it is publicly called, behaved in
exactly the same way that they now allege is the basis for the criminal
charges pending herein. That is, the scientologists are herded away from any
place from which they might view my picket sign and private investigators
often walk the picket line with me, and verbally harass me, as they do to Mr.
Henson and many others. Golden Era is in fact a heavily armed paramilitary
base: (www. holysmoke.org/tabayoyon2.txt;
www.scientology-lies.com/andretabayoyon.html;
www.sky.net/~sloth/sci/tabayoyon2
www.sky.net/~sloth/sci/mary.tabayoyon.html).
26. Clearly, what the Scientologists in charge are afraid of is that some of
their numbers might be exposed to the contents of our picket signs and that
might lead to the asking of difficult and potentially embarrassing questions
for which there are no simple, pat answers. Or worse yet, that seeing the
content of the picket signs might lead some of the "fold" to defect.
Experience has taught me that the people in control of Scientology are afraid
of our exercising our Constitutional right of free speech. They are arguably
more worried about Mr. Henson and others’interference with their
prospective
economic advantage than they are worried about any alleged weapons of
mass destruction which they accuse Mr. Henson of possessing. Assuredly, they
are afraid of the pen, not the sword. Why else would they have had a
$500/hour New York copyright attorney (Rosen) show up in the courtroom to
coach the ADA during Mr. Henson’s arraignment?
27. I have discussed this motion to withdraw with James Harr,Esq., who
agreed to file and appear on it and with Keith Henson who said he would
discharge me and raise no objection to this motion.
I declare under penalty of perjury according to the laws of the Sate of
California and the United States of America that the foregoing is true and
correct.
Executed in Los Angeles, California on this the 18th of December 2000.
______________________________
Graham E.Berry
‘